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01/17/2018

Immigration Alert: Plan Now for H-1B Cap Filings

Monday, April 2, 2018 marks the first day U.S. Citizenship and Immigration Services (USCIS) will accept H-1B petitions subject to the annual cap for the Fiscal Year (FY) 2019, which begins October 1, 2018. Preparation for H-1B cap season starts much earlier, with the identification of prospective beneficiaries and gathering of supporting documentation. With increasing demand for H-1B workers, we encourage employers to identify potential H-1B cap cases now and work with immigration counsel to ensure timely filing of cases.

H-1B Categories

H-1B cap cases generally fall within two categories:

“Standard” Cap Petitions. The minimum educational requirement is a bachelor’s degree or its equivalent. Standard cases are capped at 65,000 annually.

U.S. Advanced Degree Petitions. The beneficiary must hold an advanced degree, defined as a master’s degree or higher, awarded by a U.S. university. USCIS allocates an additional 20,000 H-1B visas for U.S. advanced degree cases each fiscal year.

Who Should Be Considered for an H-1B Cap Petition?

Potential beneficiaries include, but are not limited to:

New hires from overseas

F-1 students completing a qualifying course of study or working pursuant to Optional Practical Training

Some L-1 visa holders

Certain J-1 exchange visitors

TN, E-3 and other nonimmigrant status holders who wish to change to H-1B status in the coming year

H-4 Dependent EAD holders. With proposed changes to rules for work authorization for H-4 spouses of H-1B visa holders, employers may want to consider filing for employees with Employment Authorization Documents (EADs) based on H-4. In addition, employers may wish to evaluate options for L-2 or E dependent EAD holders.

Why it’s Best to Start Planning Now
Last year, the available visa numbers were exhausted very quickly, and the annual H-1B limit was reached in the first 5 business days of the filing period. Having received more than 199,000 petitions to surpass the limit of 85,000, H-1B cap petitions were subject to a lottery for the fourth consecutive year. We anticipate that the H-1B quota will again be quickly reached this year. It is increasingly important to file cap-subject H-1B petitions at the earliest possible date. Although H-1B cap petitions may be filed as early as April 2, 2018, note that employment pursuant to any approved FY 2019 H-1B cap petition may not commence prior to October 1, 2018.

A Reminder – Who Is Not Subject to the Cap:

Certain H-1B petitions are not counted against the FY 2019 annual cap, including:

Individuals in H-1B Status Previously Counted Against the Cap. In most cases, individuals who were counted against the cap in a previous fiscal year are not subject to the current cap. This includes extensions of status for current H-1B visa holders, changes in the terms of employment for current H-1B workers, and most petitions for changes of H-1B employers and petitions for concurrent employment in a second H-1B position.

Petitions for Exempt Organizations. H-1B petitions for employment at institutions of higher learning or related/affiliated nonprofit entities, nonprofit research organizations, and governmental research organizations are cap-exempt.

What is Different This Year?
Although no rule changes have been published to date, the Administration is considering changes to the H-1B visa program and cap selection process, such as online registration, that could impact filings. Over the past year, clients have seen increased scrutiny of all H-1B petitions with demands for additional evidence on various issues, in particular with respect to qualifying the position as a specialty occupation. In response, employers are being required to provide additional documentation to justify and support H-1B positions and the degree requirements.

Gibney will be closely monitoring any proposed changes to policy or procedure and we will provide updates as needed.

If you have any questions about this alert, please contact your Gibney representative or email info@gibney.com.